Opinion
No. 1010 C.D. 2013
01-03-2014
Simone C. Phillips, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Simone C. Phillips (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) denying her claim for unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law). Claimant contends the Board erred in determining her encounter with a coworker violated Catholic Senior Housing and Health Care Services, Inc.'s (Employer) workplace violence policy. To that end, Claimant asserts Employer, who did not present the allegedly threatened coworker as a witness, failed to establish Claimant engaged in any acts or threats of violence. Claimant further maintains Employer violated her constitutional rights by retaliating against her for filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Upon review, we reverse.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law states an employee shall be ineligible for compensation for any week in which her unemployment is due to willful misconduct connected to her work.
I. Background
The Board found the following relevant facts. Claimant worked for Employer as a part-time registered nurse from June 2012 until her last day of work on February 10, 2013.
Employer's workplace violence policy prohibits employees from making threats, engaging in threatening behavior, or committing acts of violence against employees, visitors, guests or other individuals. Employer's policy also prohibits abusive or offensive comments. Claimant signed an acknowledgment of Employer's workplace violence policy.
On February 8, 2013, Claimant approached her supervisor, Barbara Muller (House Supervisor) to complain about the behavior of the floor's charge nurse, Grace Cabanillas (Charge Nurse). Claimant complained that Charge Nurse did not adequately assist her with one of her residents who needed a doctor, and that Charge Nurse failed to provide her with an adequate morning report. House Supervisor brought Claimant and Charge Nurse into a locker room to discuss Claimant's complaints.
During the meeting, Claimant's tone became accusatory, and her voice became louder and louder. Claimant accused Charge Nurse of not properly doing her job. Claimant also accused Charge Nurse of discriminating against her. Charge Nurse denied Claimant's accusations. At one point, Claimant approached Charge Nurse, pointed her finger at her and accused her of being passive aggressive. House Supervisor became concerned about Claimant's confrontational behavior and ended the meeting.
Two days later, Employer discharged Claimant for her conduct during the meeting, which Employer determined to be in violation of its workplace violence policy. Claimant applied for UC benefits, which the local service center denied. The service center determined Claimant's violation of Employer's workplace violence policy constituted disqualifying willful misconduct under Section 402(e) of the Law.
Claimant appealed. Following a hearing at which Claimant and three witnesses for Employer testified, a referee also found Claimant ineligible for benefits under Section 402(e). Claimant appealed to the Board, which affirmed the referee and held Claimant ineligible under Section 402(e). In so doing, the Board reasoned:
The Board notes there is a conflict in testimony regarding [Claimant's] conduct on February 8, 2013, which led to her discharge. The Board, as the ultimate arbiter of credibility determinations, resolves the conflict in testimony in favor of [Employer]. [Employer's] credible testimony shows that on February 8, 2013, [Claimant] aggressively pointed her finger at [Charge Nurse] while speaking in a loud and accusatory manner. Such conduct clearly violates [Employer's] workplace violence policy which prohibits abusive conduct. [Employer] has therefore met its burden.
Bd. Op., 5/28/13, at 3 (emphasis added). Claimant petitions for review.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013). Substantial evidence is evidence which a reasonable mind would accept as adequate to support a conclusion. Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558 (Pa. Cmwlth. 2012).
II. Issues
Claimant essentially contends the totality of the circumstances do not establish that Claimant's conduct during the locker room meeting violated Employer's workplace violence policy. Claimant also asserts Employer acted in bad faith by continually mischaracterizing the language of its workplace violence policy, and Employer's failure to present Charge Nurse as a witness supports an inference that Claimant did not violate the workplace violence policy. In addition, Claimant maintains her termination by Employer after she filed a charge of discrimination with the EEOC, and Employer's knowledge of the charge, is sufficient to establish a retaliatory discharge in violation of Claimant's constitutional rights.
III. Discussion
A. Violation of Employer's Policy
We first address Claimant's contention that given the totality of the circumstances, the Board erred in determining Claimant violated Employer's workplace violence policy. First, Employer acknowledged it knew that Claimant, an African American, filed a charge of discrimination against Employer, which remained pending.
Second, Claimant calmly and privately complained to House Supervisor that Charge Nurse failed to properly assist her on the floor. Claimant further argues her conduct during the locker room meeting did not violate Employer's workplace violence policy; she did not utter a single threatening word. At worst, Claimant became loud and upset and accused Charge Nurse of being passive aggressive.
Claimant argues Employer created this confrontation to fire an employee who complained to the EEOC about discrimination. Thus, Claimant contends Employer unjustly terminated her for a violation of its workplace violence policy.
Initially, we note, the issue of whether Claimant's conduct constituted willful misconduct under Section 402(e) of the Law is a question of law fully reviewable by this Court. Aversa v. Unemployment Comp. Bd. of Review, 52 A.3d 565 (Pa. Cmwlth. 2012). Further, Employer has the burden of showing Claimant's conduct rose to the level of willful misconduct. Id.
Where, as here, the determination of willful misconduct is based on the violation of a work rule, the employer must first prove the existence of a reasonable work rule and its violation. Id. If the employer does that, the burden shifts to the claimant to show good cause for the rule violation. Id.
We also believe our decision in Aversa is instructive in addressing the merits of the present case. There, we reversed a decision of the Board denying a claimant's application for UC benefits on the ground that he violated the employer's workplace violence policy by engaging in threatening behavior. In that case, the claimant, a sales manager, angered by the employer's assignment of one of his clients to another sales manager, sent the other manager an e-mail stating "Hey Jim, you set me up pretty good ... I WON'T FORGET IT." Aversa, 52 A.2d at 567. The sales manager forwarded the e-mail to the employer, who terminated the claimant for threatening a fellow employee. The referee and the Board denied the claimant benefits under Section 402(e) on the ground that the claimant's e-mail violated the employer's workplace violence policy.
In affirming the referee, the Board indicated it did not credit the claimant's testimony that he did not intend the e-mail to be threatening, harassing or intimidating. However, we explained in Aversa that a negative credibility determination, by itself, did not constitute substantial evidence that the claimant did, in fact, intend a threat. See Kyu Son Yi, DVM v. State Bd. of Veterinary Med., 960 A.2d 864 (Pa. Cmwlth. 2008).
Rather, a determination that the claimant intended a threat required evidence, such as an admission by the claimant. Aversa. "Otherwise, the words of the statement itself must establish, objectively, the threat." Id. at 571.
In determining whether the claimant's conduct violated the employer's workplace violence policy in Aversa, we noted:
A threat or act of intimidation is an act that is intended to prevent another from exercising a legal right. Warning a co-worker not to lie in the future is not, therefore, intimidation. We focus on whether it was a threat because the record shows that [the employer's] stated reason for dismissing [the claimant] was the 'threatening language' he used in the e-mail ....
A 'threat' is defined as a communication that conveys an 'intent to inflict harm or loss on another or on another's property.' BLACKS LAW DICTIONARY 1519 (8th ed. 2004). [The claimant's] e-mail did not threaten [co-worker] with harm to his person or property. It did not state, for example, 'I am going to get you' or 'You will be sorry.' Even those examples may be too vague to convey an intentional threat. By contrast, 'I am going to beat you up' or 'I am going to burn down your house' leave no doubt in the reader's mind.Id. (footnote omitted).
In Aversa, we ultimately determined that the language of the claimant's e-mail, by objective standards, did not constitute a threat or a wanton or deliberate violation of the employer's workplace violence policy. In short, the employer's policy did not prevent expressing anger or harboring a grudge. Id.
Similarly, it does not appear here that Claimant's conduct or statements at the meeting were violent or threatening in nature. House Supervisor testified that on February 8, 2012, Claimant asked her if she could talk to her. Referee's Hr'g, Notes of Testimony (N.T.), 3/26/13, at 10. Id. Claimant complained that Charge Nurse did not properly assist her with the morning report and that she did not help Claimant with a resident who needed a doctor. Id.
Certified Record (C.R.) at Item #9.
House Supervisor then asked Charge Nurse if she had time to discuss Claimant's concerns. Id. Charge Nurse stated that she did give Claimant her morning report. Id. House Supervisor asked Claimant and Charge Nurse to sit down at the meeting. Id. Claimant, however, remained standing. Id.
As the meeting progressed, Claimant's tone became more excited and accusatory. Id. at 11. Claimant kept accusing Charge Nurse of not giving her a morning report; it became more of a "face-to face." Id. Claimant then briefly left the locker room and came back. Id. This time, Claimant walked right up to Charge Nurse, pointed her finger at her, and told her "you know what you are? You're passive aggressive." Id.
At that point, House Supervisor thought, "if she gets any closer, she's going to hit her or something." Id. However, Claimant turned around and left the room. Id. House Supervisor described Claimant's hand gestures during the meeting as "kind of intimidating" and Claimant's body language as "kind of confrontational, sort of." Id. at 13.
Employer's Handbook sets forth Employer's workplace violence policy, which provides (with emphasis added):
[Employer] is firmly committed to providing an environment that is free from acts or threats of violence. In keeping with this commitment, [Employer] has established a strict policy that prohibits any employee from threatening or committing any act of violence, while on duty, while on [Employer]-related business, or while operating any vehicle or equipment owned or leased by [Employer]. [Employer] will not tolerate employees who make threats, engage in threatening behavior, or commit acts of violence against employees, visitors, guests, or other individuals.
Any employee who instigates or participates in workplace violence will be subject to disciplinary action up to and including termination of employment. In addition, abusive or offensive conduct will not be tolerated. Firearms, weapons of all kinds and other dangerous or hazardous devices or substances are prohibited from [Employer's] premises at all times.Referee's Hr'g, Emp'r Ex. #1.
As noted, whether an employee's conduct rises to the level of disqualifying misconduct under Section 402(e) is an issue of law reviewable on appeal. Aversa. Here, we believe Claimant's aggressive conduct toward Charge Nurse at the meeting makes this a very close case. Nonetheless, applying objective standards, we cannot agree that Claimant's conduct during the locker room meeting violated Employer's workplace violence policy.
First and foremost, Employer placed Claimant in a confrontational meeting with Charge Nurse to discuss complaints Claimant had raised privately with House Supervisor. N.T. at 10. During the meeting, Claimant and Charge Nurse argued over whether Charge Nurse provided Claimant with an adequate morning report. Id. at 10-11.
At some point, Claimant became upset with Charge Nurse, pointed her finger at her and called her "passive aggressive." Id. at 11. According to House Supervisor, Claimant also told Charge Nurse: "You thought this little Black girl was going to take over your ... what you were doing." Id. Claimant then turned around, left the room and returned to work to finish her shift. Id. House Supervisor followed Claimant to her cart. Id. She put her arm around Claimant, who was "visibly upset" and "truly shaking." Id. House Supervisor tried to calm Claimant and help her finish her work. Id.
Given the circumstances, we do not equate Claimant's venting during the incident with the type of threatening or abusive behavior prohibited by Employer's workplace violence policy. Although Claimant became upset during a confrontation with a co-worker, she never threatened her. To that end, nothing in House Supervisor's testimony indicates Charge Nurse or anyone else felt threatened by Claimant's conduct. At the most, House Supervisor and Charge Nurse "could not believe what [they] were hearing." N.T. at 11.
Consequently, we hold Claimant's actions during the incident resulting in her discharge did not constitute the type of threatening or abusive behavior contemplated by Employer's workplace violence policy. Aversa. Accordingly, we reverse the Board's order denying Claimant UC benefits under Section 402(e) of the Law.
Having determined the Board erred in denying Claimant UC benefits under Section 402(e) of the Law based on a violation of Employer's workplace violence policy, we need not address the remaining issues raised by Claimant. --------
/s/_________
ROBERT SIMPSON, Judge Judge McCullough concurs in the result only. ORDER
AND NOW, this 3rd day of January, 2014, for the reasons stated in the foregoing opinion, the order of the Unemployment Compensation Board of Review is REVERSED.
/s/_________
ROBERT SIMPSON, Judge